DVD Piracy Judge Tells All

Kaplan, who sided with the motion picture industry in a landmark DVD-descrambling lawsuit this year, simply views them as lawless miscreants.

To Kaplan, a 56-year-old jurist who once represented Time Warner as a lawyer in private practice, the coders who crafted the DeCSS DVD-decrypting utility are "what might be called cyber-freedom fighters, or perhaps cyber-anarchists."

In August, Kaplan ruled that the DeCSS Windows program violated the Digital Millennium Copyright Act, and compared the spread of the application to a "common-source outbreak epidemic."

His verdict: 2600 Magazine, which the entertainment industry had sued in January, must remove the program from its website.

The movie industry claims the widespread availability of DeCSS will encourage DVD piracy; the Linux community argues that it should have the right to create a program like DeCSS to watch DVDs on an operating system lacking officially sanctioned players.

But the ruling did little to stop the spread of DeCSS online. Google, for instance, reports over 68,000 matches for "DeCSS," and Carnegie Mellon University researcher Dave Touretzky, who testified at the trial, has never removed DeCSS from his website.

"Little did I know, when I was scribbling away, that (the) decision would receive so much attention," Kaplan said Thursday afternoon at a "Beyond Napster" symposium organized by American University's Washington College of Law.

He didn't criticize the movie industry directly, but he did say that "you really don't have to look very far to find the extremists on either side of the issue."

In a preliminary ruling in February, Kaplan excoriated Linux hackers who merrily mirrored the DeCSS program and the CSS source code all over the Net.

"Members of the hacker community then stepped up efforts to distribute DeCSS to the widest possible audience in an apparent attempt to preclude effective judicial relief," Kaplan said.

2600 Magazine, with the financial aid of the Electronic Frontier Foundation, has appealed its loss to the Second Circuit Court of Appeals. The 2600 brief is due December 20 and the plaintiffs' brief is due on January 19, 2001, with oral arguments to take place no earlier than March 2001.

If the case is appealed to the Supreme Court, Kaplan confidently predicts his decision will be upheld: "The Supreme Court has repeatedly rejected absolutist views of the First Amendment," he said.

As evidence, he cited the decades-old Red Lion and Pacifica cases, in which the Supreme Court said the FCC could regulate Americans' expression on the airwaves – two rulings that free speech advocates have long detested. In U.S. v. Pacifica Foundation, the court ruled that the FCC could legally restrict seven vulgar words from broadcasts.

Kaplan also:

Defended the controversial DMCA, saying "this demonstrates clear as a bell that Congress listened to all sides of the debate, whether or not you agree with where the DMCA came out."

The magazine argued that the DMCA was unconstitutional, but Kaplan rejected that argument.

Compared the sloganeering that surrounded the lawsuit in his courtroom to the ongoing squabbles over whether George W. Bush or Al Gore will win Florida's electoral votes.

Said that the Internet represents the "fourth great age of human communication," following the invention of writing, the printing press, and then broadcasting.

Said Congress might eventually revisit the DMCA: "Judges are not best suited to deal with cases like these. Judges are best suited to deal with matters between private parties.... Judges do not have any special training to rule on decisions such as these and lack the objective perspective to make those best decisions."

That's encouraging news for Peter Jaszi, a professor of law at American University and a DMCA critic. He said that Kaplan's comment, from a judge who has studied the DMCA perhaps more closely than any other, suggests the "inevitability" of amendments to the controversial law.

In July, during the trial, 2600 lawyer Martin Garbus filed a motion to kick Kaplan off the case, saying the judge displayed "deep-seated antagonism" and once worked at a firm that had represented Time Warner on DVD antitrust issues. Kaplan denied the request.